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Impact of the Arc21 Judical Review on the Redress preparations

It is not immediately apparent how a judgement in a judicial review over a planning consent could have any impact on the Redress preparations being made in Stormont following the recommendations of Sir Anthony Hart in the Historic Institutional Abuse Inquiry. However there could be significant consequences creating even greater confusion in the situation as it stands.

On Monday, 14 May 2018 Mrs Justice Keegan ruled that the approval for the construction of a waste incinerator without a minister being in post was unlawful. She upheld the view of campaigners opposed to the development that a senior civil servant did not have the legal power to approve a project even though the development had been approved by the Planning Appeals Commission.

Mrs Justice Keegan is reported to have said “I do not consider that Parliament can have intended that such decision making would continue in Northern Ireland in the absence of ministers without the protection of democratic accountability”. She was concerned that to permit the development suggested that senior civil servants were taking decisions which were in effect policy decisions and that in the absence of an Executive that policy defining could go on indefinitely.

So what does this mean for those currently involved in assessing the recommendations in the HIAI? Can they continue to prepare draft budgets, scheme structures and programmes for implementing a Redress Scheme? What is the standing of the preparatory work done to date?

While there is no Programme for Government and no Executive to devise and implement policy those tasked with managing the government departments are now faced with even greater uncertainty as to the extent of their power to act.

The judgement will be considered by all concerned and decisions will have to be taken on how the judgement will impact on all aspects of decision making and preparation and could lead to a stalling of any preparatory work which is potentially policy related.
The Head of the Civil Service in Northern Ireland, Mr David Sterling, said there was a lack of clarity at present and it has been indicated that the judgement will be appealed.
The ripples of a judgement in a planning matter could now have extremely far reaching and unintended consequences.